Do Tennessee's 2011 damage caps apply to medical malpractice cases against doctors and nurses at public hospitals?

Subject

Opinion No. 12-58, Healthcare Liability Actions under the Tennessee Civil Justice Act of 2011, May 31, 2012

Plain-English summary

Senate Minority Leader James F. Kyle asked the Tennessee AG how the damage caps in the 2011 Tennessee Civil Justice Act (Tenn. Code Ann. §§ 29-39-101 to -104) interact with two pre-existing regimes: the Tennessee Claims Commission Act (for state defendants) and the Governmental Tort Liability Act, or GTLA (for local government defendants and their employees). Specifically, do the new caps apply to health care liability actions, and what happens when the defendant is a doctor or nurse employed by a local government hospital?

The AG concluded:

1. The 2011 caps on noneconomic damages ($750,000 ordinarily; $1,000,000 for catastrophic injury) and punitive damages apply to "all civil actions," including health care liability actions. The Act itself excepts claims against the state, local governmental entities, and employees of local governmental entities to the extent the caps would be inconsistent with the Claims Commission Act or the GTLA.
2. For physicians and nurses employed by local governments, the noneconomic-damages caps apply because the GTLA does not itself cap damages against those individuals. But if the local government entity itself is liable (immunity removed by the GTLA), GTLA's $300,000/$700,000 per-occurrence caps on the entity control. Punitive damages are unavailable against the government entity and its employees in negligence actions under the GTLA (Johnson v. Smith), so the Civil Justice Act's punitive cap is moot there; the GTLA's stricter rule applies.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical background and statutory framework

The 2011 Civil Justice Act

The Act (2011 Tenn. Pub. Acts 510, § 10) added Tenn. Code Ann. §§ 29-39-101 to -104. Section 29-39-102 limits compensation for noneconomic damages to $750,000 per injured plaintiff, with a higher $1,000,000 cap for catastrophic injury (§§ 29-39-102(a)(2), (b), (c)). Section 29-39-104(a)(5) limits punitive damages, while subsection (b) clarifies that the Act does not create a punitive-damages claim where none already exists.

The Act also replaced "medical malpractice action" throughout the Code with "health care liability action" (2011 Tenn. Pub. Acts 510, § 9), defining the new term in § 29-26-101(a)(1) as "any civil action, including claims against the state or a political subdivision thereof, alleging that a health care provider or providers have caused an injury related to the provision of, or failure to provide, health care services to a person, regardless of the theory of liability on which the action is based."

The exception clause

Section 29-39-102(l) controls how the new caps interact with pre-existing state-immunity regimes:

No provision in this part [title 29, chapter 39, part 1] shall apply to claims against this state to the extent that such provision is inconsistent with or conflicts with the Tennessee Claims Commission Act, compiled in title 9, chapter 8, part 3. In addition, no provision in this part shall apply to claims against a governmental entity or its employees to the extent that such provision is inconsistent with or conflicts with the Governmental Tort Liability Act, compiled in chapter 20 of this title.

Claims Commission Act and GTLA: pre-existing damage rules

For state defendants, the Claims Commission Act bars punitive damages against the state (§ 9-8-307(d)). For local government defendants under the GTLA, neither the entity nor its employees is liable for punitive damages in actions arising out of employee negligence (Johnson v. Smith). Under the GTLA, immunity from suit is generally retained except where expressly removed (§ 29-20-201(a)); negligence-caused injuries are one express removal (§ 29-20-205). Where immunity is removed, the GTLA caps total damages (economic and noneconomic) against the entity at $300,000 per person per occurrence and $700,000 for all persons in a single occurrence, for health care liability actions arising on or after July 1, 2007 (§§ 29-20-311, -403(b)(4)).

Physicians and nurses employed by local governments

Section 29-20-310(b) and (c) define "health care practitioner" for GTLA purposes as physicians (Title 63, ch. 6) and nurses (Title 63, ch. 7). When the entity's immunity is removed and a health care liability claim is filed, the GTLA limits when a separate claim can be brought against the practitioner: damages must exceed the GTLA minimum or the entity's actual insurance, whichever is greater, and the entity must be joined. In that case, the practitioner is exposed to unlimited liability over and above the entity's exposure (§ 29-20-310(b)).

Where the entity remains immune, no GTLA cap applies to the practitioner. The AG read that gap together with the Civil Justice Act's noneconomic-damages cap and concluded that, in those cases, the $750,000 cap is "controlling" because it is not inconsistent with the GTLA. Where the entity is liable and joined, the practitioner's noneconomic-damages exposure is capped at $750,000 minus the entity's allocated share.

Punitive damages against public employees

Because the GTLA bars punitive damages against local government entities and their employees in negligence-based cases (Johnson v. Smith), the AG concluded the GTLA's stricter rule controls under § 29-39-102(l): the Civil Justice Act's cap is moot since punitives are simply unavailable in this category.

Common questions

I'm a hospital lawyer at a county hospital. Do my docs and nurses face the new $750,000 cap?

According to this opinion, generally yes for noneconomic damages where the hospital itself is liable (and shares the cap by apportionment) or where the hospital remains immune. Punitive damages are off the table for the entity and its employees in negligence cases under the GTLA. The interplay of GTLA caps and Civil Justice Act caps is fact-specific; verify current statutory text and case law.

Does the cap apply to claims against the State of Tennessee directly?

The Act's cap yields to the Claims Commission Act for state defendants. The Claims Commission Act bars punitive damages and contains its own damage rules. To the extent the Civil Justice Act's caps conflict with the Claims Commission Act, the latter controls.

What's the relationship between the GTLA $300,000 cap and the Civil Justice Act $750,000 cap?

The GTLA $300,000 per-plaintiff cap controls the local government entity's exposure where the entity is sued (and not immune). The Civil Justice Act $750,000 cap applies to the noneconomic-damages exposure of the practitioner defendant. When both are in play, the noneconomic-damages allocation under § 29-39-102(b) accounts for apportionment of fault, but the entity's per-occurrence GTLA cap is fixed.

Are punitive damages ever recoverable in a health care liability case against a public employee?

Under this opinion, no, in negligence cases involving local government entities or their physicians/nurses. Johnson v. Smith is cited for that bar. The GTLA's stricter rule controls the Civil Justice Act's cap.

What counts as a "catastrophic" injury for the higher cap?

Tenn. Code Ann. § 29-39-102(c) sets the higher $1,000,000 cap for catastrophic injuries. The statute defines what qualifies (e.g., spinal-cord paralysis, amputation, severe burns). The AG opinion did not analyze that definition.

Does the cap apply to economic damages?

No. The Civil Justice Act's noneconomic-damages cap addresses noneconomic damages only (pain, suffering, mental anguish, loss of consortium, etc.). Economic damages are not capped by §§ 29-39-101 to -104 (though GTLA's combined caps for governmental entities cover both).

Citations

• Tenn. Code Ann. §§ 29-39-101 to -104 (Civil Justice Act caps)
• Tenn. Code Ann. § 29-39-102(a)(2), (b), (c) (noneconomic-damages cap; catastrophic injury)
• Tenn. Code Ann. § 29-39-102(l) (exception for Claims Commission Act and GTLA conflicts)
• Tenn. Code Ann. § 29-39-104(a)(5), (b) (punitive damages cap)
• Tenn. Code Ann. § 29-26-101(a)(1) (definition of "health care liability action")
• Tenn. Code Ann. § 29-20-201(a) (GTLA immunity)
• Tenn. Code Ann. § 29-20-205 (negligence exception)
• Tenn. Code Ann. § 29-20-310 (health care practitioner defined; joinder rule)
• Tenn. Code Ann. §§ 29-20-311, -403 (GTLA caps)
• Tenn. Code Ann. § 9-8-307(d) (no punitives against state)
• 2011 Tenn. Pub. Acts 510 (Civil Justice Act)
• Walker v. Sunrise Pontiac-GMC Truck, Inc., 249 S.W.3d 301 (Tenn. 2008)
• Cronin v. Howe, 906 S.W.2d 910 (Tenn. 1995)
• Johnson v. Smith, 621 S.W.2d 570 (Tenn. Ct. App. 1981)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-058.pdf

Original opinion text

May 31, 2012
Opinion No. 12-58
Healthcare Liability Actions under the Tennessee Civil Justice Act of 2011

QUESTIONS

1. Do the limitations on damage awards in Tenn. Code Ann. §§ 29-39-101 to -104 apply to health care liability actions?

2. Do the limitations on damage awards in Tenn. Code Ann. §§ 29-39-101 to -104 apply to physicians and nurses employed by a local governmental entity who are litigants in a health care liability action?

OPINIONS

1. The limitations on damage awards in Tenn. Code Ann. §§ 29-39-101 to -104 apply to all civil actions, including health care liability actions, with the exception of claims against the State of Tennessee, local governmental entities and the employees of local governmental entities. With respect to such claims, Tenn. Code Ann. §§ 29-39-101 to -104 would not apply to the extent those code sections are inconsistent with or conflict with the provisions of the Tennessee Claims Commission Act or the Tennessee Governmental Tort Liability Act ("GTLA").

2. The limitations on noneconomic damages awards in Tenn. Code Ann. §§ 29-39-101 to -104 apply to physicians and nurses employed by a local governmental entity. The limitations on punitive damages are inapplicable to the extent that the GTLA completely excludes these physicians and nurses from liability for punitive damages.

ANALYSIS

1. Tenn. Code Ann. §§ 29-39-101 to -104, passed as part of the Tennessee Civil Justice Act of 2011 ("The Act"), limit damage awards in civil actions. 2011 Tenn. Pub. Acts 510, § 10. Compensation for noneconomic damages is limited to $750,000 for each injured plaintiff unless the injury is catastrophic. Tenn. Code Ann. § 29-39-102(a)(2) & (b). Compensation for noneconomic damages for catastrophic injuries is limited to $1,000,000. Tenn. Code Ann. § 29-39-102(c).

The Act also limits punitive damages. Tenn. Code Ann. § 29-39-104(a)(5). However, the Act does not create any claim for punitive damages. Tenn. Code Ann. § 29-39-104(b). See also Tenn. Code Ann. § 29-39-102(m). Under the Claims Commission Act the State of Tennessee is not liable for punitive damages. Tenn. Code Ann. § 9-8-307(d). Under the GTLA neither the governmental entity nor the governmental employees are liable for punitive damages in an action arising out of the negligence of an employee. Johnson v. Smith, 621 S.W.2d 570, 572 (Tenn. Ct. App. 1981).

The Act replaces the term "medical malpractice action" throughout the Tennessee Code with "health care liability action." 2011 Tenn. Pub. Acts 510, § 9. The term "health care liability action" is defined by the Act as "any civil action, including claims against the state or a political subdivision thereof, alleging that a health care provider or providers have caused an injury related to the provision of, or failure to provide, health care services to a person, regardless of the theory of liability on which the action is based." Tenn. Code Ann. § 29-26-101(a)(1).

The Act's limitations on noneconomic damages apply to all civil actions, which would include health care liability actions, with the general exception of claims against the State of Tennessee, local governmental entities and the employees of local governmental entities, notwithstanding conflicting statutes or common law. Tenn. Code Ann. § 29-39-102(l)&(n). The Act specifically addresses claims against the state, and local governmental entities and their employees, as follows:

No provision in this part [title 29, chapter 39, part 1] shall apply to claims against this state to the extent that such provision is inconsistent with or conflicts with the Tennessee Claims Commission Act, compiled in title 9, chapter 8, part 3. In addition, no provision in this part shall apply to claims against a governmental entity or its employees to the extent that such provision is inconsistent with or conflicts with the Governmental Tort Liability Act, compiled in chapter 20 of this title.

Tenn. Code Ann. § 29-39-102(l).

Consequently, Tenn. Code Ann. §§ 29-39-101 to -104 apply to all civil actions, including health care liability actions, with the exception of claims against the State of Tennessee, local governmental entities and the employees of local governmental entities to the extent that the provisions of Tenn. Code Ann. §§ 29-39-101 to -104 are inconsistent with or conflict with the provisions of the Tennessee Claims Commission Act or the GTLA.

2. Tenn. Code Ann. §§ 29-39-101 to -104 apply to health care liability actions against physicians and nurses employed by local governmental entities to the extent that these provisions are not inconsistent with or in conflict with the GTLA. The primary rule governing the construction of any statute is to ascertain and give effect to the legislature's intent. Walker v. Sunrise Pontiac-GMC Truck, Inc., 249 S.W.3d 301, 309 (Tenn. 2008). A conflict between statutes will be recognized only when no fair and reasonable construction will permit the statutes to stand together. Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn. 1995).

Generally speaking, local governmental entities are immune from suit for any injury resulting from their tortious actions, except in those instances in which immunity is expressly removed by the GTLA. Tenn. Code Ann. § 29-20-201(a). One example of express removal under the GTLA is for injuries proximately caused by a negligent act or omission of a governmental employee, such as may be the case in a health care liability action. Tenn. Code Ann. § 29-20-205. The GTLA further provides that the limits of liability for governmental agencies for health care liability actions arising on or after July 1, 2007, in the absence of the purchase of insurance coverage in excess of such limits, are $300,000 for bodily injury or death of any one person in any one accident, occurrence or act, and $700,000 for bodily injury or death of all persons in any one accident, occurrence or act. Tenn. Code Ann. §§ 29-20-311, -403(b)(4).

If the immunity of the governmental entity is removed by the GTLA, no claim may be brought or judgment entered against a health care practitioner employed by that entity unless the claim is one for health care liability against a healthcare practitioner. If a claim for health care liability is filed, no such claim may be brought against the health care practitioner or judgment entered against a health care practitioner unless the amount of damages sought or judgment entered is in excess of the minimum limits set out in Tenn. Code Ann. § 29-20-403 or the amount of insurance carried by the governmental entity, whichever is greater, and the entity is also made a party. Tenn. Code Ann. § 29-20-310(b). In that event, the health care practitioner may be liable for an unlimited amount over the governmental entity liability. Id.

If the governmental entity is immune under the GTLA, there are no damage limits imposed by the GTLA on health care liability claims brought against health care practitioners employed by the entity. Tenn. Code Ann. § 29-20-310(c).

Tenn. Code Ann. § 29-39-102(l) provides expressly that "no provision in this part [Tenn. Code Ann. §§ 29-39-101 to -104] shall apply to claims against a governmental entity or its employees to the extent that such provision is inconsistent with or conflicts with the Governmental Tort Liability Act." The GTLA does not specify what kind of damages can be awarded against physicians and nurses employed by a local governmental entity and sued for health care liability. Nor does the GTLA impose a cap on damages awarded against such physicians and nurses. Cases filed against such physicians and nurses where the governmental entity is immune appear no different from cases filed against private defendants. In this circumstance, the damage awards limits provisions in Tenn. Code Ann. §§ 29-39-101 to -104, including both noneconomic and punitive damages, are not in conflict with or inconsistent with the GTLA and would be controlling. See Cronin v. Harris, 906 S.W.2d at 912.

If the Tennessee Civil Justice Act damage award limits apply in those cases where the immunity of the governmental entity is removed by the GTLA and the entity is sued along with its physicians and nurses, the amount of all noneconomic damages, not to exceed $750,000 for each injured plaintiff ($1,000,000 if the injury is catastrophic), is apportioned among the defendants based upon the percentage of fault. Tenn. Code Ann. § 29-39-102(b). The GTLA however provides that the total damages (economic and noneconomic) that can be awarded against the governmental entity is limited to $300,000 for each injured plaintiff pursuant to Tenn. Code Ann. §§ 29-20-311, 29-20-403(b)(4). Since here the GTLA damage limits may conflict with the damage limits in Tenn. Code Ann. § 29-39-102(b), on this point the GTLA controls with regard to the governmental entity given the express recognition by Tenn. Code Ann. § 29-39-102(l) that any conflict between the Tennessee Civil Justice Act and the GTLA is resolved in favor of the GTLA. With respect to the physicians and nurses sued in this situation, their liability for noneconomic damages would be limited to no more than $750,000, unless the injury was catastrophic, less any amount for which the governmental entity is found liable. Cases filed against such physicians and nurses where the governmental entity is not immune do not appear significantly different from cases filed against private defendants. In this circumstance, the limitations on noneconomic damages under the Act are not in conflict with or inconsistent with the GTLA and would be controlling. See Cronin v. Harris, 906 S.W.2d at 912.

As for punitive damages where immunity of a governmental entity is removed by the GTLA, the GTLA precludes both the local governmental entity and its employees from liability for punitive damages in an action arising out of the negligence of an employee. Johnson v. Smith, 621 S.W.2d at 572. Thus in this case the GTLA controls, since it provides greater protection than Tenn. Code Ann. § 29-39-104(a)(5), which merely limits punitive damages.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

KIMBERLY J. DEAN
Deputy Attorney General

Requested by:
Senator James F. Kyle
Senate Minority Leader
309 War Memorial Building
Nashville, Tennessee 37243-0028